| People v Strife |
| 2018 NY Slip Op 08385 [167 AD3d 1095] |
| December 6, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Mark Strife, Appellant. |
DeLorenzo, Grasso & Dalmata, LLP, Schenectady (Cory Ross Dalmata of counsel), forappellant.
Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Schenectady County (Sira, J.),rendered April 12, 2017, upon a verdict convicting defendant of the crime of driving whileintoxicated and the traffic infraction of speeding.
In January 2016, defendant was stopped by a police officer after his vehicle was observedtraveling approximately 50 miles per hour in a 30 mile-per-hour zone in the Village of Scotia,Schenectady County. Upon approaching defendant's vehicle, the officer smelled the strong odorof an alcoholic beverage and observed that defendant had glassy, bloodshot eyes and was havingdifficulty multitasking. Defendant was thereafter administered three separate standardized fieldsobriety tests, and he failed all three. He was then placed under arrest for driving whileintoxicated (see Vehicle and Traffic Law § 1192 [3]) and speeding(see Vehicle and Traffic Law § 1180 [d]). Following a jury trial, defendantwas convicted as charged, and County Court sentenced him to five years of probation. Defendantnow appeals, and we affirm.
Defendant challenges County Court's Batson ruling (see Batson v Kentucky,476 US 79 [1986]), contending that the court failed to engage in the requisite three-step processfollowing the People's use of peremptory challenges to remove all three prospective jurors ofcolor from the first venire panel. Defendant failed to preserve this contention by rendering anyobjection with respect to County Court's Batson process at a time when it could havebeen meaningfully addressed (see People v Smocum, 99 NY2d 418, 423 [2003];People v James, 99 NY2d 264, 271-272 [2002]; People v Thomas, 92 AD3d 1084, 1086 [2012]; People vColeman, 5 AD3d 1074, 1075 [2004], lv denied 3 NY3d 638 [2004]; compare People v Grafton, 132 AD3d1065, 1067 [2015], lv denied 26 NY3d 1145 [2016]). Defendant also claims that thePeople failed to lay a proper foundation for the admission of a demonstrative video depicting theadministration of the horizontal gaze nystagmus field sobriety test to an unknown and unrelatedthird-party individual. Although defendant objected to the video's admission on various grounds,no objection was made on this ground and, therefore, defendant's contention is unpreserved forreview (see People v Button, 56AD3d 1043, 1046 [2008], lv dismissed 12 NY3d 781 [2009]). In any event,defendant's argument is without merit. The jury was made aware of the demonstrative purpose ofthe video, that it did not actually depict defendant or the horizontal gaze nystagmus test that hewas administered on the evening in question, and, therefore, given the context in which the videowas offered, we would find that it "play[ed] a positive and helpful role in the ascertainment oftruth" and did not serve to prejudice defendant in any respect (People v Acevedo, 40NY2d 701, 704 [1976]; see People vRaucci, 109 AD3d 109, 122-123 [2013], lv denied 22 NY3d 1158 [2014];People v Estrada, 109 AD2d 977, 978-979 [1985]).
Defendant's claim that County Court erred in limiting his cross-examination of the arrestingpolice officer is unpersuasive. " 'Trial courts are accorded wide discretion in makingevidentiary rulings and, absent an abuse of discretion, those rulings should not be disturbed onappeal' " (People v Collins,126 AD3d 1132, 1133 [2015], lv denied 25 NY3d 1161 [2015], quoting People vCarroll, 95 NY2d 375, 385 [2000]; see People v Wynn, 149 AD3d 1252, 1255 [2017], lvdenied 29 NY3d 1136 [2017]). "[W]hile the court may not deprive a party of the right toinquire into matters directly relevant to the principal issues of the case against him [or her]"(Feldsberg v Nitschke, 49 NY2d 636, 643 [1980] [internal quotation marks and citationomitted]), "[t]he general rule is that a party may not introduce extrinsic evidence on a collateralmatter solely to impeach credibility" (People v Alvino, 71 NY2d 233, 247 [1987]; see People v Hahn, 159 AD3d1062, 1066 [2018], lv denied 31 NY3d 1117 [2018]).
Here, defense counsel asked the arresting officer on cross-examination whether he had everconducted a driving while intoxicated investigation where an individual failed all threestandardized field sobriety tests but subsequently tested negative for drugs or alcohol, to whichhe replied, "Not that I can recall." Defense counsel then asked whether the officer recalled thespecific arrest of another individual in 2009, to which question the People objected and CountyCourt sustained the objection. We perceive no abuse of discretion in County Court's sustainingthis objection and limiting the officer's cross-examination. To allow defense counsel to inquireinto the specific circumstances of a 2009 arrest of another individual would have permittedinquiry into an irrelevant, collateral matter. Moreover, defendant was not prejudiced by thecourt's ruling, as defense counsel was ultimately permitted to pose a broader, less specificquestion with respect to whether it was possible that the officer had ever made a driving whileintoxicated arrest where an individual failed all the standardized filed sobriety tests and thereaftertested below the legal limit for blood alcohol content, to which question the officer replied,"Possibly."[FN*] Thus, theimport of defendant's line of questioning—i.e., that standardized field sobriety tests are notalways an accurate indicator of intoxication—was placed before the jury and it was free toeither accept or reject defendant's argument in this regard (see People v Collins, 126AD3d at 1133).
Lastly, we agree with defendant that County Court erred by failing to provide a permissiveadverse inference charge based upon the People's failure to preserve a copy of the booking roomvideo on the night of defendant's arrest (see People v Handy, 20 NY3d 663, 669 [2013]; People vKelly, 62 NY2d 516, 519-521 [1984]; see also People v Butler, 140 AD3d 1610, 1612 [2016], lvdenied 28 NY3d 969 [2016]). Notwithstanding, given the strength of the evidence againstdefendant, coupled with the fact that the jury was made aware of the People's failure to preservethis video and defense counsel was thereafter permitted to comment upon said failure during hissummation (see e.g. People v Blake,105 AD3d 431, 431 [2013], affd 24 NY3d 78 [2014]), in our view, this error washarmless; under the circumstances, there was no significant probability that defendant wouldhave been acquitted but for County Court's failure to provide a permissive adverse inferencecharge to the jury (see People v Crimmins, 36 NY2d 230, 242 [1975]; People vButler, 140 AD3d at 1612; People v John, 288 AD2d 848, 849 [2001], lvdenied 97 NY2d 705 [2002]).
McCarthy, J.P., Lynch, Mulvey and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Ironically, at the time of hisarrest, defendant himself refused to submit to a chemical test and, therefore, no test results wereintroduced at trial with regard to his blood alcohol content.